The More Things Change, the More They Stay the Same: The Obdurate Nature of Pandemic Bail Practices

In an unprecedented move, the criminal courts in Ontario closed on March 20th, 2020 in response to the COVID-19 pandemic. Bail appearances, however, could not be suspended, resulting in the rapid move to virtual appearances. Despite the dramatic change in the modality of court appearances, remarkably little changed in how the bail court operated or processed bail matters. Observations from 80 days of virtual bail court reveal the obdurate nature of well know issues with the bail process, including the culture of adjournment, reliance on surety supervision, and numerous conditions of release. Problematically, the courts are closed to the public and the accused are rendered invisible in the virtual space, leaving them even more dependent on counsel and the court. Differences in access to technology and private space create additional barriers for the most marginalized. Consistent with Feeley's assessment that 'the process is the punishment,' the virtual model has layered new punitive elements onto an already punishing experience.